United States v. Hernandez-Garcia , 211 F. App'x 604 ( 2006 )

MEMORANDUM^**

Roberto Hernandez-Garcia appeals from the 75-month sentence imposed following his guilty-plea conviction for distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

Hernandez-Garcia contends that the district court erred in concluding that he was ineligible for a minor role adjustment pursuant to U.S.S.G. § 3B1.2. We agree.

Even though Hernandez-Garcia pleaded guilty to a less serious offense, the district court was still required to conduct a factual inquiry into the role of the defendant as compared to other participants. See U.S.S.G. § 3B1.2, application note 3; United States v. Demers, 13 F.3d 1381, 1383, 1385-86 (9th Cir.1994).

Thus, based on the sentencing transcript, and because the district court declined to assess the defendant’s culpability with respect to other participants in the criminal scheme, we vacate the sentence and remand to enable the district court to reconsider whether Hernandez-Garcia was a minor participant under U.S.S.G. § 3B1.2. See 18 U.S.C. § 3742(f)(1). In doing so, we do not suggest that the district court, in its exercise of its discretion, is precluded from denying the requested adjustment.

VACATED and REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.